Lamb v. Astrue

Filing 18

ORDER - IT IS ORDERED: 1. Defendant's decision denying benefits is reversed. 2. The claim is remanded for an award of benefits. Signed by Judge David G Campbell on 2/8/13. (LAD)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Tiffany C. Lamb, No. CV-12-00738-PHX-DGC Plaintiff, 10 11 v. 12 ORDER Michael J. Astrue, Commissioner of the Social Security Administration, 13 Defendant. 14 15 16 On September 28, 2012, Tiffany Lamb (“Plaintiff” or “the claimant”) filed an 17 opening brief challenging the Commissioner’s denial of her application for Social 18 Security benefits. Doc. 13. The Commissioner filed a response on November 14, 2012. 19 Doc. 16. Plaintiff filed a reply on December 3, 2012. Doc. 17. For the reasons that 20 follow, the Court will grant Plaintiff’s appeal of the Commissioner’s determination and 21 remand the case for an award of benefits. 22 I. Factual Background. 23 Plaintiff filed an application for disability insurance benefits and supplemental 24 security income on November 9, 2007, alleging a disability onset date of May 1, 2006. 25 Tr. at 24. 26 reconsideration on October 7, 2008. Tr. at 24. A hearing was held on February 23, 2010, 27 at which Plaintiff amended the alleged onset date to November 4, 2007. Tr. at 24. The 28 Administrative Law Judge (“ALJ”) denied Plaintiff’s application, and the ALJ’s decision Her claims were initially denied on April 8, 2008, and again after 1 became the final agency decision when the Social Security Administration Appeals 2 Council denied a request for review. Tr. at 1-5. 3 II. Legal Standard. 4 Defendant=s decision to deny benefits will be vacated “only if it is not supported 5 by substantial evidence or is based on legal error.” Robbins v. Soc. Sec. Admin., 466 F.3d 6 880, 882 (9th Cir. 2006). “‘Substantial evidence= means more than a mere scintilla, but 7 less than a preponderance, i.e., such relevant evidence as a reasonable mind might accept 8 as adequate to support a conclusion.” 9 supported by substantial evidence, the Court must consider the record as a whole, 10 weighing both the evidence that supports the decision and the evidence that detracts from 11 it. Reddick v. Charter, 157 F.3d 715, 720 (9th Cir. 1998). If there is sufficient evidence 12 to support the Commissioner’s determination, the Court cannot substitute its own 13 determination. See Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990). 14 III. 15 16 17 18 19 Id. In determining whether the decision is Analysis. For purposes of Social Security benefits determinations, a disability is the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. 20 C.F.R. § 404.1505. 20 Determining whether a claimant is disabled involves a five-step evaluation. The 21 claimant must show (1) he is not currently engaged in substantial gainful employment, 22 (2) he has a severe physical or mental impairment, and (3) the impairment meets or 23 equals a listed impairment or (4) his residual functional capacity (“RFC”) precludes him 24 from performing his past work. If at any step the Commission determines that a claimant 25 is or is not disabled, the analysis ends; otherwise it proceeds to the next step. If the 26 claimant establishes his burden through step four, the Commissioner bears the burden at 27 step five of showing that the claimant has the RFC to perform other work that exists in 28 substantial numbers in the national economy. See 20 C.F.R. § 404.1520(a)(4)(i)-(v). -2- 1 The ALJ found that Plaintiff has not engaged in substantial gainful employment 2 since the disability onset date of November 4, 2007, and that she suffers from 3 “fibromyalgia, with aches and pain through her muscles and joints, fatigue, and major 4 depression.” Tr. at 26. The ALJ found the combination of these impairments to be 5 severe, satisfying step two. Id. At step three the ALJ considered the medical evidence 6 and concluded that the claimant does not have an impairment or combination of 7 impairments that meets or equals the severity of one of the impairments listed in the 8 regulations. Tr. at 27. The ALJ then considered the medical evidence and relevant 9 statements and testimony and concluded that Plaintiff had the RFC to perform light work 10 as defined in 20 C.F.R. § 404.1567(b) and § 416.967(b). Tr. at 28. Plaintiff was limited, 11 however, to “unskilled work involving simple operations, with no crawling, crouching, 12 climbing, squatting or kneeling, no use of her legs or feet for pushing or pulling leg 13 controls and no reaching above shoulder level.” Id. At step five, the ALJ considered the 14 testimony of the vocational expert and concluded that Plaintiff could not perform her past 15 relevant work as a clerk typist or a stocker, but that she could perform other jobs that 16 exist in significant numbers in the national economy. Tr. at 32-33. Therefore, the ALJ 17 concluded that the Plaintiff was not disabled within the meaning the Social Security Act. 18 Tr. at 34. 19 Plaintiff’s brief raises several challenges to the ALJ’s findings. She argues that 20 the ALJ erred by rejecting the assessment of the treating rheumatologist and Plaintiff’s 21 symptom testimony. She also argues that it was error for the ALJ to determine work 22 capacities “based on a standardized assessment, without any basis in the record[.]” 23 Doc. 13 at 1. The last argument is presented with an acknowledgment that it has been 24 rejected by this Court and is raised merely to preserve the issue for further appeal. 25 Doc. 13 at 20-21, n. 13. Because the Court finds that the ALJ improperly discounted the 26 treating physician’s testimony and that the testimony is sufficient to remand for an award 27 of benefits, it need not address the additional arguments. 28 -3- 1 A. Testimony of Treating Rheumatologist. 2 Where the treating physician=s opinion is not contradicted by another physician, 3 the ALJ’s reasons for rejecting the opinion must be “clear and convincing.” Thomas v. 4 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (citation omitted); see also Lewis v. Apfel, 5 236 F.3d 503, 517 (9th Cir. 2001) (“[A]n ALJ may reject a treating doctor’s medical 6 opinion, if no other doctor has contradicted it, only for ‘clear and convincing’ reasons 7 supported by substantial evidence.”) (citing Reddick, 157 F.3d at 725). If the opinion of a 8 treating physician conflicts with the opinion of an examining physician, the ALJ may 9 discount the treating physician’s opinion if he “makes findings setting forth specific, 10 legitimate reasons for doing so that are based on substantial evidence in the record.” 11 Thomas, 278 F.3d at 957 (citation omitted). “The ALJ can meet this burden by setting 12 out a detailed and thorough summary of the facts and conflicting clinical evidence, 13 stating his interpretation thereof, and making findings.” Id (quotation marks omitted). 14 Additionally, “[t]he ALJ need not accept the opinion of any physician, including a 15 treating physician, if that opinion is brief, conclusory, and inadequately supported by 16 clinical findings.” Id. 17 Dr. Vijayabhanu Mahadevan, M.D., was Plaintiff’s treating rheumatologist. In a 18 Fibromyalgia Residual Functional Capacity Questionnaire, completed on December 9, 19 2011, Dr. Mahadevan opined that Plaintiff’s fibromyalgia and depression caused her 20 “moderately severe pain,” and that Plaintiff has “moderately severe fatigue which 21 interferes with her attention and concentration on a frequent basis.” Tr. at 213-215. He 22 also checked the box indicating that Plaintiff would not be able to sustain work on a 23 regular and continuing basis (8 hours a day, 5 days a week). Tr. at 215. 24 The ALJ stated that he gave “little weight” to Dr. Mahadevan’s opinion because it 25 was “inconsistent with the record as a whole” and was “based entirely upon the 26 claimant’s subjective allegations and . . . unsupported by the medical evidence, which 27 includes finding [sic] by other physicians [.]” Tr. at 32. Plaintiff argues that the ALJ did 28 not point out any inconsistences with the record, and that the other medical evidence did -4- 1 not contradict Dr. Mahadevan’s assessment. Furthermore, she argues that mere reliance 2 on a patient’s subjective reporting of symptoms is not sufficient evidence to undermine 3 the opinion of a treating physician. 4 The ALJ specifically cites to several exhibits containing Dr. Mahadevan’s and the 5 physician’s assistant’s treatment notes at Valley Arthritis Care (Exs. 4F, 10F, 18F 6 corresponding with Tr. at 316-327, 375-389, 492, 516). He characterizes the physical 7 exam notes as normal except for a left shoulder problem unrelated to fibromyalgia, but 8 the notes contain “other findings” in the “Physical Findings” section that indicate 9 Plaintiff was “positive” at multiple trigger points. Tr. at 318, 379, 382, 385, 388, 493, 10 495, 497, 500, 503, 506, 508, 510. Multiple tender points are common symptoms of 11 fibromyalgia. 12 symptoms . . . include chronic pain throughout the body, multiple tender points, fatigue, 13 stiffness, and a pattern of sleep disturbance that can exacerbate the cycle of pain and 14 fatigue associated with this disease.”). Although the ALJ cites many pages containing 15 these positive trigger point observations, he never mentions them or explains how they 16 are consistent with his characterization of the physical exam findings as normal. Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir. 2004) (“Common 17 The ALJ cites opinions from a podiatrist, a gynecologist, and a physical therapist, 18 each of whom examined or treated Plaintiff. Tr. at 30. The podiatrist’s opinion concerns 19 pain in the big toe of the right foot. Tr. at 549. The ALJ does not explain how this 20 opinion contradicts Dr. Mahadevan’s fibromyalgia diagnosis or his findings about 21 Plaintiff’s limitations. 22 gynecological exams in 2008 and 2009 were normal (Tr. at 391, 542), but the ALJ does 23 not explain how these exams are related to the treating physician’s fibromyalgia 24 diagnosis. The physical therapist’s treatment for back pain from January 25 through 25 March 3, 2010, is relevant to the underlying fibromyalgia diagnosis to the extent that it 26 addresses the severity of the Plaintiff’s pain. The ALJ noted that the physical therapist’s 27 examinations “remained essentially the same” and that the condition was gradually 28 improving. Tr. at 30. While this evidence demonstrates some improvement in Plaintiff’s Tr. at 30. The gynecologist testified that the results of -5- 1 back pain in early 2010, it does not contradict Dr. Mahadevan’s fibromyalgia diagnosis 2 or provide clear and convincing evidence for discounting his 2011 opinion regarding 3 Plaintiff’s overall condition throughout the disability period. Thomas, 278 F.3d at 957; 4 Tr. at 217. 5 The ALJ also appears to have relied on the opinion of a nurse practitioner in 6 discounting the opinion of Dr. Mahadevan. He observed that because Dr. Mahadevan 7 prescribed a low grade exercise program and stretching to relieve some of the symptoms 8 of fibromyalgia, nurse practitioner Patricia Timlick refused to indicate that Plaintiff 9 would be disabled for “more than one year” or to fill out an application for a disabled 10 license plate. Tr. at 30. Her refusal was also based on her own physical examinations. 11 Tr. at 534-35. Timlick also noted that Plaintiff’s condition had improved somewhat as a 12 result of medication. Tr. at 392. A nurse practitioner, however, is not an “acceptable 13 medical source,” and her opinions cannot be used to contradict the opinion of a treating 14 physician. 15 404.1513(a) and (d); Thomas, 278 F.3d at 957. The ALJ fails to articulate how a light 16 exercise regimen and some improvement with medication provide clear and convincing 17 evidence that Dr. Mahadevan’s underlying diagnosis was wrong or that the prescribed 18 physical limitations were overstated. Gomez v. Chater, 74 F.3d 967, 970-71 (9th Cir. 1996); 20 C.F.R. §§ 19 Finally, the ALJ discounts Dr. Mahadevan’s opinion because it is “based entirely 20 on the claimant’s subjective allegations and is unsupported by the medical evidence.” 21 Tr. at 32. 22 subjective complaints, they also note positive trigger points indicative of fibromyalgia. 23 “[A]n ALJ does not provide clear and convincing reasons for rejecting an examining 24 physician’s opinion by questioning the credibility of the patient’s complaints where the 25 doctor does not discredit those complaints and supports his ultimate opinion with his own 26 observations.” Ryan v. Commissioner of Social Sec. 528 F.3d 1194, 1199 (9th Cir. 2008) 27 (citation omitted). While Dr. Mahadevan’s treatment notes contain a record of Plaintiff’s 28 -6- 1 B. Award of Benefits. 2 The decision to remand for further development of the record or for an award 3 benefits is within the discretion of the Court. 42 U.S.C. § 405(g); see Harman v. Apfel, 4 211 F.3d 1172, 1173-74 (9th Cir. 2000). This Circuit has held, however, that an action 5 should be remanded for an award of benefits where three conditions are met: the ALJ has 6 failed to provide legally sufficient reasons for rejecting evidence, no outstanding issue 7 remains that must be resolved before a determination of disability can be made, and it is 8 clear from the record that the ALJ would be required to find the claimant disabled were 9 the rejected evidence credited as true. 10 The Court has found that the ALJ failed to give legally-sufficient reasons for 11 discrediting the opinion of Plaintiff’s treating physician, Dr. Mahadevan. As a result, his 12 opinion must be credited as true. See Varney v. Secretary of Health and Human Services, 13 859 F.2d 1396 (9th Cir. 1988) (“if grounds for [discrediting a claimant’s testimony] exist, 14 it is both reasonable and desirable to require the ALJ to articulate them in the original 15 decision.”); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (“Where the 16 Commissioner fails to provide adequate reasons for rejecting the opinion of a treating or 17 examining physician, we credit that opinion ‘as a matter of law.’” (citing Hammock v. 18 Bowen, 879 F.2d 498, 502 (9th Cir.1989)); Harman v. Apfel, 211 F.3d 1172, 1178 (9th 19 Cir.2000) (same); Benecke v. Barnhart, 379 F.3d 587 (9th Cir.2007) (“Because the ALJ 20 failed to provide legally sufficient reasons for rejecting Benecke’s testimony and her 21 treating physicians’ opinions, we credit the evidence as true.”). 22 When presented with Dr. Mahadevan’s opinion regarding Plaintiff’s limitations, 23 the vocational expert stated the limitations “would preclude work[.]” Tr. at 65. Because 24 Dr. Mahadevan’s limitations opinion is credited as true, and the vocational expert has 25 already testified that such limitations would preclude all work, there are no outstanding 26 issues to be resolved. Accordingly, the Court will remand for an award of benefits. 27 IT IS ORDERED: 28 1. Defendant’s decision denying benefits is reversed. -7- 1 2. The claim is remanded for an award of benefits. 2 Dated this 8th day of February, 2013. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?